February 10, 2006

As a member of Congress in 1998, I sponsored the Intelligence Community Whistleblower Protection Act to ensure that current or former employees could petition Congress, after raising concerns within their respective agency, consistent with the need to protect classified information.

Exercising one's rights under this act is an appropriate and responsible way to bring questionable practices to the attention of those in Congress charged with oversight of intelligence agencies. And it works. Government employees have used statutory procedures — including internal channels at their agencies — on countless occasions to correct abuses without risk of retribution and while protecting information critical to our national defense.

On the other hand, those who choose to bypass the law and go straight to the press are not noble, honorable or patriotic. Nor are they whistleblowers. Instead they are committing a criminal act that potentially places American lives at risk. It is unconscionable to compromise national security information and then seek protection as a whistleblower to forestall punishment.

36 comments:

I certainly don't know the full circumstances of why Risen's sources came to Risen. Nor do I know that they didn't first go to the Congress or to their employers. It would be interesting to find out.

But um, seeing how the Republicans are in control of all three branches of government, and BOTH branches of Congress, seeing how hard it is for the President to call for a special prosecutor even when there is a clear conflict of interest, seeing how the President knowingly said he was against leaks all the while knowing that Cheney gave authorization for Libby to disclose classified materials to the press JUST to smear Wilson, seeing how the administration has serially smeared many other former administration officials that tried to state what was happening in the administration, and knowing how outrageous the illegal wiretapping was as can be seen that it caused the forced removal of Comey and even caused John Ashcroft, JOHN ASHCROFT! to say no to the program, seeing as how the Administration had testified that FISA was working well and had worked to oppose the changes they LATER said were necessary all while secretly violating FISA, well, given all that we do know, and all that you do not know, I am certainly not ready to agree with Porter Goss that:

On the other hand, those who choose to bypass the law and go straight to the press are not noble, honorable or patriotic. Nor are they whistleblowers. Instead they are committing a criminal act that potentially places American lives at risk.

Instead it seems to me that they are quite possibly very honorable whistleblowers taking the steps they felt necessary to shed light on this program. If they broke the law, they may have to deal with that as an act of civil disobedience. I am willing to both thank them for their efforts as well as putting them before a jury of the peers.

Are you Professor Ann Althouse, ready to call for a special prosecutor in the wiretapping case? If not, what would it take for you to look for an independent investigation?

You are definitely right that the distinction is an important and valid one. Two points:

1. Shouldn't "the battle to protect our classified information" include a committment to not disclosing classified information regarding agents of the CIA. Even if one believes Plame was not active NOC or not covered by the much publicised statute, I am fairly certain that her status was "classified information".

2. The notion that the ICWPA "works" is questionable. (see http://www.reason.com/hod/js011306b.shtml) According to one of the NSA sources: "The ICWPA as far as I know has only had something like two disclosures in the years it's been in existence. You know why? Because any intelligence officer knows if you do this, your career is done." If the Act is, indeed, toothless or most in the intelligence community think it is, then much of Goss's argument fails in my opinion.

Whether the law is strong enough (in your opinion) or not is not the issue. The law is what it is. And it is pretty clear.

The leakers - regardless of motivations - broke the law. Their opinions that they were doing the right thing for the best of intentions are irrelevant. What they thought might be harmless may have endangered others. See the Snepp opinion from SCOTUS.

I agree that the "law is what it is." I don't think it would be an effective legal defense for someone charged with improperly divulging classified information to say: "I had to release the information the way I did because the ICWPA is ineffective."

What I have a problem with is Goss (or anyone else) suggesting that this information should not be disclosed the way it has been because there is whistleblower protection if the protection is illusory.

Why do you think the protection is illusory? Did any prior leakers go to Congress or their agency and were then subjected to reprisals?

The law is the law. Politics is politics. No one will be prosecuted. We don't believe in our own system of laws enough any more. The world is full of quxxos who think that breaking the law is fine, as long as you can justify it to yourself.

I am not sure that I think that the protection is illusory. I do know that the reporting around the NSA matter in particular gave me the impression that some in the intelligence community believed that the whistleblower protection is illusory. My main point was that Goss saying the protection "works" does not make it so and if it does not work, it undermines a large part of his argument in my boook.

With respect to your observation that there are too many "who think that breaking the law is fine, as long as you can justify it to yourself," I concur. I will see your quxxo and raise you a Scooter Libby and an Ollie North.

The problem with bypassing the law here and going straight to the press with the argument that the law is ineffective in this case, is that without going through the procedures provided by the law, how are we to know that they would have been ineffective?

In particular, note that part of the procedures provided include notification of the Intelligence Committees of Congress. This implies at least some Congressional oversight.

Let me again point out the final scene in the Clancy movie, "Clear and Present Danger", where Ryan (then DDI) goes before such a body as a whistleblower.

So, if someone working for an intelligence agency, goes through the required whistleblower provisions, including notifying Congress, and is still unhappy, then maybe he can make an argument that the procedure is effective - and pay the consequences. Before that, though, he needs to exhaust his administrative rememdies, which this person apparently did not.

Spot on, Bruce. There are people arguing the protections are ineffective but we can't know that because they were not tested. I would actually be sympathetic to the argument if procedure had been followed and then the person went to the press. (He'd still be breaking the law, but I'd be a lot more willing to listen to arguments then.)

But again, the leaker(s) could very well have caused additional damage to programs or persons they were not aware of. That is why this behavior is so problematic. Which is why SCOTUS ruled as it did on Snepp even though even though the CIA agreed that his book itself did not reveal any secrets.

1. I suppose you were similarly against the prosecution of Libby in the Plamne case, inasmuch as revealing that classified information was just a kind of whistleblowing.

Pogo, how was leaking Plame's identity whistleblowing? (Especially in light of recent revelations that Cheney knew the Niger claims were bogus BEFORE he started up his campaign to discredit Wilson's claim that the Niger claims were bogus. Where was the whistleblowing?

PatCa, The world is full of quxxos who think that breaking the law is fine, as long as you can justify it to yourself. You are either misinterpreting what I have said, or just plain lying. I have never said any such thing. Show me the money or bug off.

Suppose, and this is a big suppose, that the whole Plame Thing was orchestrated by Cheney. How was Cheney not a whistleblower?

The Left has this vision that all "whistleblowing" is some heroic action of oppressed against oppressor. But it isn't. A whistleblower is "One who reveals wrongdoing within an organization to the public or to those in positions of authority." Do you have to be of a certain underling, "oppressed" status to blow a whistle.

You can twist yourself in whatever ways you want, Mr./Ms. quxxo, but the fact is that what Risen has done and what whoever sourced Novak did were EXACTLY the same. They both deserve protection, or they both don't. You want to protect Risen and jail Novak's source (and probably Novak, too) because you perceive them to be your political enemies. This is Stalinism of the worst and most disgusting sort. I hate people liek you.

Mr./Ms. quxxo: Your post wonderfully proves my point: that you think people "on your side" can do no wrong so long as their motives are, in your eyes, pure.

Let's continue to stipulate that Cheney and Libby outed Plame. I think this entire stipulate is false.

What did Wilson do wrong? Conceptually, he attempted to undermine the foreign-policy-making authority of constitutionally-appointed foreign policy makers. This is highly unethical. Did he break any laws? His op-ed probably did not go through proper clearance channels. He was insubordinate. He certainly made the first substantive move in the chain of events that ended up causing his wife's name to be a seni-household name.

I put your question to you: what law did Libby or Cheney break? Loons such as yourself point to an obscure law that has been used exactly once before, and which Fitzgerald chose not to ues, and which the Congressional Record clearly shows was not intended for a case like this one.

As to the leaker's intention, it seems to have been to point out that Joe Wilson attempted to undermine the foreign-policy-making authority of constitutionally-appointed foreign policy makers, and to undermine his credibility.

I ask you again, in caps: HOW IS WHAT RISEN AND HIS SOURCES HAVE DONE ANY DIFFERENT THAN WHAT NOVAK AND HIS SOURCES DID?

The gist of Goss's statement hasmerit in the vacuum of black vswhite simplism.

Brian Martin cites a typical ex;

"A public servant comes across some worrying information. It appears that contracts are being awarded without proper scrutiny. Being a conscientious sort of person, she reports the problem to her boss. No investigation results. Instead, there are rumours of difficulties with her work. Some colleagues seem to shun her. Then she is called in by her boss and confronted with a complaint about work she did two years ago. She loses confidence and starts making mistakes in her job that would never have occurred before. Before long she takes sick leave for stress - never to return."

http://www.uow.edu.au/arts/sts/bmartin/pubs/03utslr.html

It is comparable to the tenuousposition a victim of sexual harassment, or race discriminationfaces.

It is not enough to simply dismissleaks as unnecessary when such 'protection' is available only inthe abstract sense.

It is compounded by the politcalagendas of those who wish to usenational security issues as ablanket protection for all formsof covert acts. As we know, thatsort of subterfuge is an old gameto the idealogues.

It is the role of the Congress to oversee the intelligence community, not ex-diplomats and certainly not the New York Times.

Furthermore, the opposite problem exists for whistleblowing: anyone can expose activity and call it whistleblowing. In a normal situation, someone can blow a whistle and a lawsuit or hearing can determine who was right. Regarding covert and national security issuesm, you can't report it in the New York Times (or the Chicago Sun-Times) and then later determine if it should have been reported or not.

Whistleblowers can bring their lawsuits in courts where the evidence remains secret if they must. There really is no reason for the press to have been involved in Plame or NSA.

What did Wilson do wrong? Conceptually, he attempted to undermine the foreign-policy-making authority of constitutionally-appointed foreign policy makers. This is highly unethical.

As a private citizen what he was doing was exercising his freedom of speech. What he was doing was trying to shed some light on the manipulations of the Administration. That is a brave and highly moral act. Nothing unethical about it.

He was criticising the administration in a public, fair fight. The administration in turn used covert leaks in an attempt to not engage in that argument, but to discredit Wilson. That my friend, is the only unethical behavior present.

Did he break any laws? His op-ed probably did not go through proper clearance channels.

And I am guessing that if had broken any laws, they would have been filed against him by now. If his paper wasn't cleared, his clearance would have been revoked. Since I have heard of none of this, I am left to conclude that he broke no laws and his op-ed required no clearance.

He was insubordinate.

You would make insubordination illegal?

He certainly made the first substantive move in the chain of events that ended up causing his wife's name to be a seni-household name.

Officer, he testified that I was lying, so it was his fault that I had to shoot him.

According to Jack Shafer at Slatehttp://www.slate.com/id/2089249/IIPA would apply iff:

1) That the individual has or had "authorized access to classifiedinformation that identifies a covert agent.

2) That in addition to having had authorized access to the informationabout the covert agent, the individual must have "intentionally" disclosed it to an individual not authorized to receive classified information.

3) That the individual knew he was disclosing information that identifies a "covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States.

If the leaker was Libby, with Cheney's permission, in an intentionalattempt to discredit Wilson AFTER Cheney knew the niger claims were bogus,and if Fitzgerald is saying that Plame was covert, than doesn't thatpretty much cover points 1, 2, and 3 above?

HOW IS WHAT RISEN AND HIS SOURCES HAVE DONE ANY DIFFERENT THAN WHAT NOVAK AND HIS SOURCES DID?

Risen's sources exposed what they felt were the illegal, dangerous, wasteful, and ineffective operations of the administration, people that had vast amounts of power to be able to keep their illegal actions secret. By exposing the illegal actions, Risen's sources have protected the Constitution and our United States and her people at great personal risk to themselves. Their actions were patriotic.

Libby, Rove, and Cheney illegally used their power to discredit the accurate statements of a private citizen in a quest for revenge and a continuance of their power. They did so by outing an expert in WMDs, and by outing her, so outed her networks as well as all other covert agents that worked at her same front company. Libby, Rove, and Cheney had ample opportunity and ability to confront and answer Wilson in a head on attack. But they chose not to, and instead falsely claimed they were exposing a corrupt CIA agent that had had her own husband hired, and how that husband, incompetent in this analysis had gone to Africa and done nothing and found nothing. Not a single point of this ended up to be true. All of this were the lies of Libby, Rove and Cheney. Their acts were cowardly and clearly damaged national security.

Thank you for playing, are you aware that a MACHO is a great big nothingness in space? Yes, I think that fits you QUITE WELL!

How did the soruces who disclosed Plame's identity not "expose...what they felt were the illegal, dangerous, wasteful, and ineffective operations" of Joe Wilson and Valerie Plame, high-level government figures?

Wilson was not a private citizen. He went on a government-sponsored junket. Plame was not a private citizen.

Aren't the people who outed the NSA program attempting to "illegally use... their power to discredit" government officials "in a quest for revenge and a continuance of their power"? Have they not "[done] so by outing" experts in surveillance, and by outing them, "so outed [their] networks as well as all other" covert surveillance in the same programs.

Note, Mr./Ms. quxxo, that no one has been prosecuted related to Plame under the law you cite. No one. Perhaps this is because no one broke that law. Mr. Libby has been indicted for lying in court, the same charge levied against President Clinton during his impeachment.

Face it: (1) you are a raving moonbat impervious to reason and unable to hold a reasonable conversation; (2) NSA and Plame are identical.

FITZGERALD: Or did they intend to do something else and where are the shades of gray?

And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He's trying to figure what happened and somebody blocked their view.

As you sit here now, if you're asking me what his motives were, I can't tell you; we haven't charged it.

So what you were saying is the harm in an obstruction investigation is it prevents us from making the fine judgments we want to make.

I also want to take away from the notion that somehow we should take an obstruction charge less seriously than a leak charge.

This is a very serious matter and compromising national security information is a very serious matter. But the need to get to the bottom of what happened and whether national security was compromised by inadvertence, by recklessness, by maliciousness is extremely important. We need to know the truth. And anyone who would go into a grand jury and lie, obstruct and impede the investigation has committed a serious crime.

Ahhh, now THAT'S the quxxo I know. I thought for a minute there someone placed your under heavy sedation. You've now made a Village People allusion in addition to a subtle attack on my intelligence. I am glad that you are back in gale force.

"This is a very serious matter and compromising national security information is a very serious matter."

Tell me: was Fitzgerald talking about the Plame case, or was he talking about the NSA case?

Face it: the NSA case is a far graver threat to national security than the Plame case. Any objective observer can admit this. Why can't you?

That's awesome, quxxo. It really is. Your response to people who disagree with you is to call them retarded.

This is going to win you a lot of support in a democracy. Maybe those "on your side," the good people, can win one single branch of the government in 2006 or 2008. I wouldn't count on it, though. The sheeple are too stupid.

I can tell also that you are full of love for humanity, and that you long for justice and peace. Those feelings and ideals simply ooze from your posts. This is in sharp contrast to the conservatives here, who spew such venom and hate. Also, we're dumber than a box of hair. That much is painfully obvious.

"I am willing to both thank them for their efforts as well as putting them before a jury of the peers." So, it was okay for them to break the law, correct? Now call me a retard, too.

The post was not about Plame. It's about the whistleblowers on your side, whom you wish to thank for their efforts.

As Bruce said, if they did not complain to their agency and to Congress, they did not exhaust their lawful remedies and broke the law by going to the papers. My speculation is that they did this because they could get political mileage out of it and know they will NOT be prosecuted.

Jim, I agree with you about political crimes and Libby and Ollie North, but they got caught and were tried. Maybe they didn't suffer enough for some tastes, but they faced the music. I believe the current whistleblowers will not, given our timidity about "protest." I hope you can prove me wrong one day.

We're all stupid, quxxo, because we disagree with you. My IQ happens to be my shoesize, which makes it easy yet difficult to remember.

Just as an aside, a lot of the time people who are clearly losing arguments resort to a thing called ad hominem attacks. I'm sure you know all about what this is. Alternatively, being as smart as you clearly are, why are you here picking on morons? Why not tangle with people of your own intellectual heft?

Wow...I was all set to post some well-thought out rejoinders to quxxo's posts, but then realized what a waste of time that would be given that he/she gets more shrill and petulent in response to the stimuli provided by the other bloggers...reminded me that I loathe outspoken liberals these days because they can't make a good argument, and they tend to respond by raising their voices to an increasingly higher pitch all the while not saying anything of substance...NANNY-NANNY-BOO-BOO!!

Dragging Plame into it doesn't change the fact that the law was broken. Last I heard "he did it first" was not a valid legal argument.

On the Plame issue, I will say that I am very uncomfortable with someone being charged with lying about a crime in which the underlying crime itself has never been charged.

Also regarding the Plame issue, a potentially dangerous precedent has now been set by the proceedings in that now reporters have been forced to disclose sources. So in effect, the drive from the left to assign blame in the Plame matter may have actually decreased civil liberites.

Perjury is perjury. Libby is accused of trying to foil the investigation. The fact that he has not been charged yet for disclosing information is a different matter - as I understand it, the burden of proof is pretty heavy, especially with regard to intent.

Nevertheless, Libby is also testifying about the disclosure of other classified information to the press - with the Vice President's permission - for purely political reasons. That is the culture of this administration.